TMI Blog2021 (2) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... ER This is assessee s appeal for the A.Y 2009-10 against the order of the CIT (A)-7, Hyderabad, dated 20.05.2019. 2. Brief facts of the case are that the assessee, an individual, along with some others, sold land, admeasuring 0.12 guntas, situated in survey No.62/A at Yarpal Village under GHMC Alwal Circle, Malkajgiri Mangal, RR Dist. vide document No.597/2009, dated, 30.03.2009 for a consideration of ₹ 18.00 lakhs whereas the market value of the property on which the stamp duty is paid was at ₹ 34,50,000/-. Since the assessee did not file his return of income offering the capital gains from this transaction to tax, the AO believed that there was escapement of income and thus issued a notice u/s 148 of the Act, on 8.3.2016 to the assessee. Since there was no response from the assessee, a show cause notice was issued to the assessee on 9.6.2016, in response to which, the Authorised Representative of the assessee appeared before the AO and on 20.06.2016 certain written submissions were filed along with an affidavit of the son of the assessee stating that the assessee has passed away and that he had gifted the property to his son and daughter. The AO, therefore, co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessment on the legal heir. Therefore, according to the learned Counsel for the assessee, the assessment is not sustainable and in support of this contention, he placed reliance upon the decision of the Coordinate Bench of the Tribunal at Vizag in the case of Sri Aemala Venkateswara Rao in ITA No.227/ Viz/2017 dated 3.4.2019 wherein it was held that the notice issued on a dead person is invalid and accordingly quashed the assessment therein is not sustainable and was quashed. 5. The learned DR was also heard who supported the orders of the authorities below. 6. Having regard to the rival contentions and the material on record, I find that the factum of the death of the assessee was brought to the notice of the AO during the re-assessment proceedings pursuant to issuance of notice u/s 148 but the AO has not taken any steps to bring Legal Heir on record and to issue notices u/s 148 of the Act to the L/Rs. In fact, the notice u/s 148 has been issued on a dead person and therefore, it is an invalid notice and the consequent assessment on the LRs without issuing the notice u/s 148 to the LRs is not sustainable. Similar facts and circumstances existed in the case of Shri A Ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings were initiated against the dead person after the death of the assessee, hence the notice issued on the dead person cannot make the legal heirs binding unless a proper notice is issued on the legal heirs. After the death of the assessee, proceedings must be initiated against the legal heirs to treat the legal heirs as deemed assessees. As per section 159 (2) (b), the AD is free to initiate proceedings against the legal representatives which could have been initiated against the deceased and determine the tax liability of the deceased person and the same is binding on the Legal representatives. Any notice issued in the name of a deceased person is invalid and cannot be enforced in the law. The Ld.AR relied on the decision of Hon'ble Madras High Court in the case of Alamelu Veerappan Vs. ITO, Non Corporate, Ward 2(2) Chennai, Writ Petition No.30060 of 2017 and WMP No.32631 of 2017. Hon'ble Madras High Court held that the notice issued on a dead person is invalid and cannot be enforced. For the sake of clarity and convenience 1 we extract No.14-23 which reads as under: 14. The issue, which falls for consideration, is as to whether the impugned notice under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, the question would be as to whether Sectiou159 of the Act would get attracted. The answer to this question would be in the negative, as the proceedings under Section 1590f the Ace can be invoked only if the proceedings have already been initiated when the assessee was alive and was permitted for the proceedings to be continued as against the legal heirs. The factual position in the instant case being otherwise, the provisions of Section 159 of the Act have no application. 19. The Revenue seeks to bring their case under Section 292 of the Act to state that the defect is Cl curable defect and on that ground, the impugned notice cannot be declared as invalid. 20. The language employed in Section 292 of the Act is categorical and clear. The notice has to be, in substance and effect, in conformity with or according to the intent and purpose of the Act Undoubtedly, the issue relating to limitation is not a curable defect for the Revenue to invoke Section 292B of the Act. 21. All the above reasons are fully supported by the decision in the case of Vipin Walia. In that case, the notice dated 27.3.2015 was issued under Section 148 of the Act to the assessee, who died on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent against a non existing entity/person goes to the root of the matter, which is not a procedural irregularity, but a jurisdictional defect, as there cannot be any assessment against a dead person. 7. Hon'ble Mumbai High Court in the case of Sumit Balkrishna Gupta v. Asstt. CIT [2019] 103 taxmann.com 188/262 Taxman 61 (Bom.) held that the notice issued on a dead person is invalid unenforceable in law. We extract the relevant part of the order of Hon'ble Bombay High court in Sumit Balkrishna Guptasupra which reads as under: 7. The issue of a notice under Section 148 of the Act is a foundation for reopening of assessment. The sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not a merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Thus, a notice which has been issued in the name of the dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is so as the requirement of issuing a notice in the name of cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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